Familias Unidas Por La Justicia AFL-CIO v. United States Department of Labor

[5] UNITED STATES DISTRICT COURT 6 WESTERN DISTRICT OF WASHINGTON AT SEATTLE [7] FAMILIAS UNIDAS POR LA JUSTICIA, CASE NO. 2:24-cv-00637-JHC [8] AFL-CIO, ORDER DENYING PLAINTIFF’S [9] MOTION FOR A THIRD PRELIMINARY Plaintiff, INJUNCTION [10] v. [11] UNITED STATES DEPARTMENT OF [12] LABOR; LORI CHAVEZ-DeREMER in her official capacity as United States Secretary of [13] Labor, [14] Defendants. [16] I [17] INTRODUCTION This matter comes before the Court on Plaintiff’s Motion for a Temporary Restraining [18] Order and Preliminary Injunction Enjoining DOL from Replacing 2020 Prevailing Wages with [19] 2022 “No Finding” Results. Dkt. # 176. The Court has reviewed the materials filed in support [20] of and in opposition to the motion, the record, and the governing law. Being fully advised, for [21] the reasons below, the Court DENIES the motion without prejudice. [24] 1 II BACKGROUND [2] A. Wages Under the H-2A Program [3] Under the H-2A program, employers may bring temporary foreign workers into the [4] United States. 8 U.S.C. § 1188 . Before an employer may obtain a visa for a foreign worker, the [5] employer must apply for a certification from the United States Department of Labor (DOL) that [6] there are not enough workers at the time and place to fulfill the employer’s need, and that [7] employment of a foreign worker “will not adversely affect the wages and working conditions of [8] workers in the United States similarly employed.” Id. (a)(1)(A)–(B). DOL regulations generally [9] require H-2A employers in agriculture to pay a wage that is at least the highest of either the [10] Adverse Effect Wage Rate (AEWR) (a state-specific hourly minimum wage) or a prevailing [11] wage rate.1 [12] Because prevailing wages can include piece-rate wages (i.e., pay based on the amount of [13] a crop harvested instead of the number of hours worked) and hourly rates of pay higher than the [14] AEWR, DOL recognizes that prevailing wages “serve as an important protection for workers.” [15] 88 Fed. Reg. 12760 , 12775 (Feb. 28, 2023). Although DOL determines the AEWR, 20 C.F.R. [16] § 655.1300, it delegates to state workforce agencies (SWAs) the task of collecting data to [17] calculate prevailing wage rates, see 20 C.F.R. § 655.1300 (c). SWAs follow DOL guidelines for [18] this task and then submit the prevailing wage rates and the survey methods used to DOL for [19] validation. See 20 C.F.R. § 655.120 (c); 87 Fed. Reg. 61660 , 61679, 61689 (Oct. 12, 2022). [22] 1 Under 20 C.F.R. § 655.120 (a), H-2A employers are generally required to pay a wage that is at least the highest of: (1) the AEWR; (2) a prevailing wage rate; (3) the agreed-upon collective bargaining [23] wage; (4) the Federal minimum wage; or (5) the State minimum wage. But generally, in agriculture, the AEWR and the prevailing wage are the only relevant wages because federal and state minimum wages are 24 lower and collective bargaining agreements are not common in the industry. Dkt. # 40 at 2–3. 1 In 2022, DOL issued regulations that changed the way that prevailing wages are 2 calculated, 87 Fed. Reg. 61660 , and a rule that prevailing wages expire after one year, 20 C.F.R. 3 § 655.120(c)(2), (One-Year Rule). Relying on these new regulations, Washington’s SWA, the 4 Employment Security Department (ESD), conducted and submitted a survey to DOL for review. 5 Dkt. # 34 at 2. But while DOL was reviewing the submission, the prior prevailing wage rates 6 expired under the One-Year Rule. Without prevailing wages in effect, there was uncertainty as 7 to the wages that workers would be paid. See Dkt. # 40 at 17–20. 8 B. This Court’s First Preliminary Injunction Before DOL published new prevailing wage rates for Washington, Plaintiff Familias [9] Unidas por la Justicia, AFL-CIO, sued DOL and the Acting United States Secretary of Labor [10] (Federal Defendants) to “challeng[e] the agency’s 2022 prevailing wage rules related to the [11] federal ‘H-2A’ temporary agricultural visa program as well as certain policies and practices [12] implementing those prevailing wage regulations.” Dkt. # 1 at 1, ¶ 1. Familias moved for a first [13] preliminary injunction,2 Dkt. # 9, to (i) enjoin the One-Year Rule; (ii) enjoin the 25% Rule, 20 14 C.F.R. § 655.120 (c)(1)(ix) (discussed infra Section III.B.2), a rule that Familias alleges [15] contributed to ESD’s 2022 survey findings of almost no prevailing piece-rate wages, Dkt. # 1 at [16] 10, ¶ 48 (and subheading IV.D.1); and (iii) rescind DOL’s approval of ESD’s population17 estimate survey method and direct ESD to conduct its survey with a different method. [18] On July 2, 2024, the Court enjoined the One-Year Rule and ordered DOL to [19] “REINSTATE and enforce the 2020-Survey prevailing wage rates, published in January 2022, [20] until judgment is entered in this case.” Dkt. # 40 at 21–22. The Court denied Familias’s motion [21] as to the 25% Rule and DOL’s approval of ESD’s population-estimate survey method because [23] 24 2 The Court issued a second preliminary injunction, Dkt. # 145, but it is not pertinent here. 1 Familias did not provide enough information about DOL’s decision-making process. Id. at 16– 2 17. 3 C. Federal Defendants’ Motion for Partial Summary Judgment 4 Federal Defendants moved for partial summary judgment on all claims requiring judicial 5 review of their actions “relating to ESD’s 2022 prevailing wage survey findings,” because DOL 6 “did not take final agency action on ESD’s 2022 prevailing wage survey findings.” Dkt. # 89 at 7 3–4. The Court granted this motion in part and dismissed some of Familias’s claims “insofar as 8 they allege that DOL approved ESD’s 2022 survey method.” Dkt. # 127 at 23. 9 D. Familias’s Motion to Clarify the First Preliminary Injunction and for Leave to File Supplemental and Second Amended Complaint [10] In what Federal Defendants characterize as an attempt to revive its dismissed claims, Dkt. [11] # 134 at 3, Familias moved to clarify this Court’s first preliminary injunction and to compel [12] DOL to act on3 the 2022-survey prevailing wages (henceforth “2022-survey wages”).4 Dkt. [13] # 128. The Court granted Familias’s motion in part and clarified the first preliminary injunction [14] as follows: [15] DOL is ORDERED to REINSTATE and enforce the 2020-Survey prevailing wage 16 rates, published in January 2022, until judgment is entered in this case. DOL may replace the 2020-Survey prevailing wage rates with subsequently published 17 prevailing wage rates. 18 Dkt. # 146 at 3 (emphasis added). The Court denied the motion in part as to its request for the 19 Court to compel DOL to act on the 2022-survey wages. Id. [20] 3 In its previous order granting Familias’s motion for leave to file a supplemental and third 21 amended complaint, the Court stated that “Familias moved to clarify this Court’s first preliminary injunction and to compel DOL to approve the 2022-survey wages.” Dkt. # 196 at 4 (emphasis added). 22 The Court clarifies that Familias asked the Court to compel DOL “to take action on the Washington 2022Survey results,” Dkt. # 128 at 10, but does not amend its previous order for reasons discussed infra Section III.A. 23 4 Although there was originally some inconsistency as to whether to label the wages by the year the survey findings were submitted rather than the year that the survey was done, the parties now refer to 24 the wages by the year that the surveys were conducted. See e.g., Dkt ## 176 at 2 & n.1; 192 at 1. 1 Familias also moved for leave to file a supplemental and second amended complaint 2 adding, among other things, a claim that DOL was unlawfully withholding or unreasonably 3 delaying agency action by not calculating prevailing wages based on the 2022 survey. Dkt. 4 # 130 at 2–3. The Court granted this motion. Dkt. # 145. 5 E. The Parties’ Cross-Motions for Partial and Full Summary Judgment and DOL’s Publication of the 2022-Survey Wages [6] Familias moved for partial summary judgment, contending that (1) the One-Year Rule is [7] arbitrary and contrary to law; (2) the 25% Rule is arbitrary and contrary to law; (3) DOL’s [8] approval of AEWR-only job orders5 is contrary to law; and (4) DOL unlawfully failed to act on [9] ESD’s 2022 survey findings. Dkt. # 165. The parties stipulated to, and the Court ordered, a [10] briefing schedule considering Federal Defendants’ intent to cross-move for full summary [11] judgment. Dkt. ## 172; 173. [12] But on June 19, 2025, before Federal Defendants filed their cross-motion for summary [13] judgment, Dkt. # 185, DOL published the 2022-survey wages. Dkt. # 176 at 8. The 2022-survey [14] wages approved four new prevailing piece-rate wage findings (for dark red cherries, bing [15] cherries, bartlett pear, and general pear) and made “no finding” for all other crop activities (e.g., [16] apples and berries). Id. at 8–9. DOL takes the position that these “no finding” results replace [17] (i.e., eliminate) the 2020-survey prevailing wages (henceforth “2020-survey wages”). See Dkt. [18] # 192 at 6. When a “no finding” result replaces a 2020-survey wage, an employer may pay the [19] AEWR, which would be lower than a prevailing piece-rate wage. Dkt. # 176 at 2; see also Dkt. [20] # 192 at 18–19. [22] 23 5 This refers to DOL’s approval of H-2A contracts that list only the AEWR and do not unequivocally offer prevailing piece-rate wages. See Dkt. ## 145 at 3; 192 at 13; see also infra Section 24 III.B.4.b. 1 F. Familias’s Motions for Leave to File Supplemental and Third Amended Complaint and for Third Preliminary Injunction [2] Familias moved for leave to file a supplemental and third amended complaint to allege [3] that DOL’s publication of the 2022-survey wages constituted final agency action and to include [4] the fact that ESD submitted its 2023 survey results to DOL on June 13, 2025. Dkt. # 175 at 1–2. [5] The Court granted this motion, and Familias filed its supplemental and third amended complaint. [6] Dkt. ## 196; 197. [7] Familias moves for a third preliminary injunction based on its new claims, seeking an [8] order that generally (1) enjoins DOL from enforcing the “no finding” results in the 2022-survey [9] wages and requires it to reinstate the 2020-survey wages for all crop activities with a “no [10] finding” result; and (2) enjoins DOL from using particular methodologies (e.g., the 25% Rule) to [11] calculate prevailing wage rates. See Dkt. # 176 at 35–36. [12] III 13 DISCUSSION A preliminary injunction is “an extraordinary remedy that may only be awarded upon a [14] clear showing that the plaintiff is entitled to such relief.” Winter v. Nat. Res. Def. Council, Inc., [15] 555 U.S. 7, 22 (2008). To obtain a preliminary injunction, a plaintiff must show that (1) they are [16] “likely to succeed on the merits”; (2) they are “likely to suffer irreparable harm in the absence [17] of” a preliminary injunction; (3) “the balance of equities tips in [their] favor”; and (4) a [18] preliminary injunction “is in the public interest.” Stormans, Inc. v. Selecky, 586 F.3d 1109 , 1127 [19] (9th Cir. 2009) (quoting Winter, 555 U.S. at 20 ). When the nonmoving party is the government, [20] the third and fourth Winter factors “merge” into a single factor. Baird v. Bonta, 81 F.4th 1036 , [21] 1040 (9th Cir. 2023). “[T]he elements of the preliminary injunction test are balanced, so that a [22] stronger showing of one element may offset a weaker showing of another.” All. for the Wild [24] 1 Rockies v. Cottrell, 632 F.3d 1127, 1131 (9th Cir. 2011); see also Doe v. Snyder, 28 F.4th 103 , 2 111 (9th Cir. 2022) (recognizing the “sliding scale” standard). 3 A. Irreparable Harm The Court previously recognized that a reduction in farmworkers’ wages constitutes [4] irreparable harm. Dkt. # 145 at 11 (citing Dkt. # 40 at 17–20). But this time the harm is, at least [5] to some extent, self-inflicted. A “largely self-inflicted [harm] severely undermines [a party’s] [6] claim for equitable relief.” Al Otro Lado v. Wolf, 952 F.3d 999, 1008 (9th Cir. 2020) (quotation [7] marks and citation omitted). Because Familias does not adequately explain why the self-inflicted [8] nature of its harm should not undermine its claim for a third preliminary injunction, the Court [9] concludes that it makes only a weak showing of irreparable harm.6 [10] DOL initially understood the first preliminary injunction to require it to enforce the 202011 survey wages throughout the pendency of this case. Dkt. # 134 at 2–3. That is, DOL believed [12] that the injunction prohibited it from publishing the 2022-survey wages. But after the Court [13] dismissed some of Familias’s claims for lack of final agency action, Familias appears to have [14] sought to create a final agency action by moving to clarify the first preliminary injunction and [15] seeking an order compelling DOL to act on the 2022-survey wages. Dkt. # 128. It did so despite [16] knowing that the 2022-survey wages would contain “no finding” results. From the outset of this [17] case, Familias recognized that because of the 25% Rule, allowing DOL to issue the 2022-survey [18] wages would “result[] in direct harm to Washington farmworkers as prevailing piece rate wages [20] 21 6 Federal Defendants renew their contention that Familias should be judicially estopped from asserting that replacing the 2020-survey wages with “no finding” results is unlawful because it had moved 22 to clarify the first preliminary injunction and to compel DOL to act on the 2022-survey wages. This contention is almost the same as that made in Federal Defendants’ opposition to Familias’s motion for leave to file a supplemental and third amended complaint to add claims that form the basis of the present [23] motion for a third preliminary injunction. Compare Dkt. # 192 at 3–4 with Dkt. # 189 at 6–7. Thus, the Court rejects Federal Defendants’ contention for the same reasons set forth in its order granting 24 Familias’s motion for leave to file a supplemental and third amended complaint. Dkt. # 196 at 13–16. 1 are discarded and a ‘no finding’ allows agricultural employers to pay lower, minimum hourly 2 wage AEWR rates instead of higher piece-rate wages.” Dkt. # 1 at 11, 13, ¶¶ 53, 64. Similarly, 3 Familias said in a previous motion that the 2022-survey wages only included “four prevailing 4 piece-rates for Washington fruit harvest: two for cherry, two for pear, and none for apples or 5 berries.” Dkt. # 85 at 4. Familias explained, “But for this Court’s [first] preliminary injunction 6 order . . . directing DOL to re-publish prevailing wage rates derived from ESD’s 2020 Wage 7 Survey—DOL would have published the flawed 2022-survey findings, and farmworker harvest 8 wages would have been paid at only the AEWR minimum hourly wage.” Id. 9 As an aside, it is unclear if Familias knew that the “no finding” results would replace the 10 2020-survey wages for particular crop activities, thereby eliminating those prevailing wages. 11 Familias’s observations about the harm that would be caused by publication of the 2022-survey 12 wages might refer solely to the effect of those wages before the Court enjoined the One-Year 13 Rule, during which there were no prevailing wages. But the parties do not discuss whether the 14 extent to which Familias knew or should have known it was self-inflicting harm is material. 15 Thus, for present purposes, the Court considers only the fact that Familias believed the 202216 survey wages are flawed but nonetheless moved to clarify the first preliminary injunction and 17 compel DOL to act on them. 18 Although the Court denied Familias’s request for an order compelling DOL to act on the 19 2022-survey wages, it granted in part Familias’s motion to clarify the first preliminary 20 injunction, which allowed DOL to publish the 2022-survey wages. Dkt. # 146. Once DOL did 21 so, Familias revived some of its claims by alleging that publication of the 2022-survey wages 22 constitutes final agency action as to those claims. See e.g., Dkt. # 197 at 9, ¶ 45. Now, Familias 23 seeks to avoid the consequences of the final agency action it allowed by asking for a third 24 preliminary injunction that would largely restore the 2020-survey wages. 1 The law does not appear to favor granting relief in such circumstances. See Ellsworth v. 2 Schneider Nat’l Carriers, Inc., 2021 WL 3417641 , at *2 (C.D. Cal. June 14, 2021) (A party is 3 “poorly positioned” to complain about a risk that “was entirely avoidable and strategically 4 pursued by a sophisticated party represented by sophisticated counsel who undoubtedly weighed 5 the risk.”). Familias does not dispute that a self-inflicted harm “severely undermines” a claim 6 for equitable relief. See Al Otro Lado, 952 F.3d at 1008 (quotation marks and citation omitted). 7 It asserts only that the harm is not self-inflicted. The entirety of Familias’s assertion—which 8 cites no authority—is reproduced below: 9 [DOL argues that] any harm is impermissibly “self-inflicted,” because Familias urged DOL to take a position one way or another with respect to ESD’s 2022 wage 10 findings. [citing Federal Defendants’ response brief.] Pointing out that DOL has a regulatory and statutory duty to act on prevailing wage findings reported by ESD 11 is not the same thing as endorsing those findings. To the contrary, Familias has been clear since the inception of this case that the 2022 findings reported by ESD 12 were invalid and hoped that, when DOL took final agency action with respect to those findings, it would reject them as inconsistent with its regulatory and sub13 regulatory policies. Instead, it approved them, making Familias’s challenge to the sub-regulatory policies they embody ripe for adjudication. There is nothing 14 inconsistent or self-injurious about insisting DOL fulfill its duty to act on prevailing wage findings, one way or another, and then challenging the specific actions taken 15 by DOL when, as is the case here, those actions are arbitrary and contrary to law. 16 Dkt. # 194 at 3–4. 17 Familias does not dispute that by moving to clarify the first preliminary injunction, it 18 created the risk that DOL might publish the 2022-survey wages. But Familias suggests that the 19 harm is not self-inflicted because it is not a proximate cause of the harm. That is, merely 20 allowing, but not requiring, DOL to publish the 2022-survey wages undermines the extent to 21 which the harm is self-inflicted. Familias cites no authority for this proposition; and even if it [1] did,7 Familias’s characterization of its conduct as merely seeking to allow DOL to decide 2 whether to publish the 2022-survey wages is not entirely accurate. 3 The issue of whether the 2022-survey wages were published arose in a discovery dispute, 4 in which DOL pointed out that there was no final agency action based on ESD’s 2022 survey. 5 Dkt. # 88 at 4. Familias responded that DOL took final agency action when Lindsey Baldwin, 6 the Director of DOL’s Prevailing Wage Program, issued an official memorandum to the Director 7 of the H-2A Program on July 9, 2024, which validated “ESD’s prevailing wage determinations 8 based on the 2022 survey results.” Id. (quoting Dkt. # 87 at 6); Dkt. # 76-3 at 619–21 9 (memorandum). Because the discussion on whether there was final agency action was limited, 10 the Court suggested that DOL could separately move to raise the issue. Dkt. # 88 at 4. Federal 11 Defendants did so in moving for partial summary judgment, in which it sought to dismiss all 12 claims requiring judicial review of DOL’s actions “relating to ESD’s 2022 prevailing wage 13 survey findings,” because DOL “did not take final agency action on ESD’s 2022 prevailing wage 14 survey findings.” Dkt. # 89 at 3–4. 15 In response to Federal Defendants’ partial summary judgment motion, Familias 16 acknowledged that DOL did not approve the 2022-survey wages. Dkt. # 127 at 13. And before 17 the Court ruled on that motion, Familias moved for leave to amend its complaint to clarify that it [18] does not rely on DOL’s approval of the 2022-survey wages to bring its claims.8 Dkt. # 111 at 1– 19 2. After some of its claims were dismissed for lack of final agency action, Familias moved to 20 clarify the first preliminary injunction and to compel DOL to act on the 2022-survey wages. [22] 7 In his dissent in Al Otro Lado, Judge Bress distinguished the cases that the majority relies on for the proposition that self-inflicted harm severely undermines a claim for equitable relief. 952 F.3d at 1037 (Bress, J., dissenting) (“These cases all involved easily foreseeable or readily avoidable harms.”). 23 8 The Court initially denied this motion as moot in ruling on Federal Defendants’ partial summary judgment motion. Dkt. # 127 at 22. After Familias renewed its motion, Dkt. # 130, the Court granted it. 24 Dkt. # 145. 1 Although Familias asked the Court to “require DOL to take action on the Washington 20222 Survey results within 14 days,” Dkt. # 128 at 10 (emphasis added), the Court construed this 3 request as one for an order “compel[ling] DOL to publish and enforce new prevailing wage rates 4 for Washington.” Dkt. # 146 at 2. This is because in its motion, Familias stated, “On July 9, 5 2024, two DOL analysts wrote a memo recommending final approval of the 2022-Survey 6 findings,” and that “[a]ll that is missing are the initials of Lindsey Baldwin.” Dkt. # 128 at 4. 7 And Familias justified the timeframe of its request that the Court “order DOL to make a decision 8 (to the extent it has not already) within two weeks” on the 2022-survey findings in part because 9 DOL “is one set of initials away from making its decision official.” Id. at 9. 10 Familias did not merely insist that “DOL fulfill its duty to act on prevailing wage 11 findings, one way or another.” Dkt. # 194 at 4. It initially represented that DOL had already 12 taken final agency action as to the 2022-survey wages. And after conceding that DOL had not 13 yet done so, it moved to require DOL to “take action” on the 2022-survey wages in a manner that 14 strongly suggested that DOL would publish them. Based on Familias’s limited briefing, the 15 Court can only conclude that the self-inflicted nature of Familias’s harm undermines what would [16] otherwise be an adequate showing of irreparable harm.9 17 B. Likelihood of Success on the Merits 18 Because Familias’s showing of irreparable harm is weak, it “must make a 19 commensurately strong showing of a likelihood of success on the merits to prevail under the 20 sliding scale approach.” Al Otro Lado, 952 F.3d at 1010 (citing All. for the Wild Rockies, 632 21 F.3d at 1131). Although Familias shows some likelihood of success as to its claim that “no 22 finding” results in the 2022-survey wages cannot replace the 2020-survey wages, it is not [23] 9 Familias also does not respond to Federal Defendants’ contention that it does not show 24 irreparable harm because the harm must be to the movant rather than a third party. Dkt. # 192 at 17 n.6. 1 sufficiently strong to warrant a third preliminary injunction. And Familias does not show a 2 likelihood of success as to its other claims. 3 1. Replacing the 2020-survey prevailing wages with “no finding” results in the 2022-survey prevailing wages [4] Familias shows some likelihood of success on the merits of its claim that “no finding” [5] results in the 2022-survey wages cannot replace the 2020-survey wages. Doing so might be [6] contrary to law under the Administrative Procedure Act (APA), 5 U.S.C. § 706 (2)(A). As an [7] initial matter, Familias contends that allowing “no finding” results in the 2022-survey wages to [8] replace the 2020-survey wages violates the first preliminary injunction as clarified. This framing [9] of the issue is unhelpful and reflects the tortuous litigation thus far. [10] Initially, the issue whether a “no finding” result for a crop activity in a new set of [11] prevailing wages replaces a preexisting prevailing wage for that activity did not arise because [12] under the One-Year Rule, the 2020-survey wages had expired when Familias filed its initial [13] complaint. Dkt. # 1 at 14, ¶ 68. And because DOL had not yet published the 2022-survey [14] wages, there were no prevailing wages in place.10 When the Court ordered DOL to reinstate the [15] 2020-survey wages under the first preliminary injunction, DOL understood it to mean that the [16] 2020-survey wages must be enforced throughout the pendency of this case. Dkt. # 134 at 2–3. [17] Because DOL believed that it could not publish the 2022-survey wages, there was no reason to [18] consider what would happen if those wages included “no finding” results. [19] In asking the Court to clarify the first preliminary injunction, Familias did not adequately [20] raise this issue. Familias first asked the Court to clarify the first preliminary injunction and to [21] order DOL to decide whether it approves ESD’s interpretations of its regulations in its opposition [22] to Federal Defendants’ partial summary judgment motion. Dkt. # 127 at 13 n.4. The Court [23] 24 10 Familias says that ESD never submitted its 2021 survey results to DOL. Dkt. # 9 at 8. 1 denied the request because it was procedurally improper and dismissed some of Familias’s 2 claims for lack of final agency action. Id. at 13 n.4, 23. Familias then renewed its request in its 3 motion to clarify the first preliminary injunction and, as discussed supra Section III.A, what the 4 Court construed as a request for an order compelling DOL to publish the 2022-survey wages. 5 Thus, the focus was on whether DOL could publish new wages, not the consequences of 6 such action. To be sure, Familias’s proposed order for its motion to clarify the first preliminary 7 injunction states, “No changes shall be made to the published 2020-Survey prevailing wage rates 8 without this Court’s prior review and approval.” Dkt. # 128-1 at 2. But its briefing does not 9 anticipate the issue of whether “no finding” results might replace the 2020-survey wages; 10 Familias merely asked the Court to “1) clarify that its July 2, 2024 preliminary injunction does 11 not prevent DOL from carrying out its statutory duty to protect the wages and working 12 conditions of farmworkers; 2) and require DOL to take action on the Washington 2022-Survey 13 results within 14 days.” Dkt. ## 128 at 10; 135 at 8. And although Federal Defendants observed 14 that Familias’s request for an order that would compel DOL “to engage in the busy work of 15 validating survey findings that are outdated and, under Plaintiff’s own theory of the case, 16 hopelessly flawed and inaccurate,” it primarily took issue with the fact that “it was only after the 17 Department filed its motion for partial summary judgment, and the significance of the final 18 agency action requirement to Plaintiff’s claims became apparent, that the supposed lack of clarity 19 of the preliminary injunction became an issue for Plaintiff.” Dkt. # 134 at 3, 8. Based on the 20 briefing before it, the Court clarified the first preliminary injunction, which again provides: 21 DOL is ORDERED to REINSTATE and enforce the 2020-Survey prevailing wage rates, published in January 2022, until judgment is entered in this case. DOL may 22 replace the 2020-Survey prevailing wage rates with subsequently published prevailing wage rates. [23] Dkt. # 146 at 3. [24] 1 Familias now contends that replacing 2020-survey wages with “no finding” results in the 2 2022-survey wages violates the first preliminary injunction as clarified. But the present motion 3 is not one for contempt. Familias says that it did not move for contempt because it 4 acknowledges that the first preliminary injunction as clarified “did not explicitly state that a ‘no 5 finding’ is not a published prevailing wage finding.” Dkt. # 194 at 4. Instead, it moves for a 6 third preliminary injunction based on its claim that replacing 2020-survey wages with “no 7 finding” results in the 2022-survey wages is contrary to law under the APA. See Dkt. # 176 at 8 18. It asserts that such action is contrary to “DOL’s regulatory definition [of ‘prevailing 9 wage’],” “Ninth Circuit precedent,” and the first preliminary injunction as clarified. Id. at 14. 10 Rather than assert that such action violates each of these authorities independently, however, it 11 uses DOL’s regulations and Ninth Circuit precedent to support its assertion that such action 12 violates the first preliminary injunction. This framing is unhelpful for two reasons. 13 First, Familias cites no authority suggesting that it may bring a claim that an agency’s 14 action is contrary to law under the APA because it violates a preliminary injunction. It also does 15 not respond to Federal Defendants’ contention that “[t]he APA does not waive sovereign 16 immunity for cases asserting a violation of judicial mandates.” Dkt. # 192 at 5 (citing Shawnee 17 Trail Conservancy v. Nicholas, 343 F. Supp. 2d 687 , 701–02 (S.D. Ill. 2004)). Moreover, “[a] 18 court’s equitable power lies only over the merits of the case or controversy before it.” Pac. 19 Radiation Oncology, LLC v. Queen’s Med. Ctr., 810 F.3d 631, 633 (9th Cir. 2015). Thus, a 20 court may not grant a plaintiff injunctive relief based on claims not pled in the complaint. Id. 21 Familias says that the relief it seeks—reinstating the 2020-survey wages for crop activities with a 22 “no finding” result in the 2022-survey wages—is sufficiently related to the claims pled in its 23 complaint. This is likely so. But it is unclear how a claim that agency action is contrary to one 24 preliminary injunction may be the basis for another preliminary injunction. The Court would 1 have to assess whether Familias is likely to succeed on the merits of a claim that exists only 2 because Familias has previously shown that it is likely to succeed on the merits of another claim. 3 Familias cites no authority supporting such analysis. 4 Second, Familias asserts that because the first preliminary injunction as clarified allows 5 DOL only to “replace the 2020-Survey prevailing wage rates with subsequently published 6 prevailing wage rates,” Dkt. # 146 at 3 (emphasis added), the pertinent question is whether a “no 7 finding” is a “prevailing wage.” And because Federal Defendants acknowledge that DOL “has 8 never taken [the] position” that “a ‘no finding’ is the same thing as a ‘prevailing wage finding,’” 9 Dkt. # 192 at 5–6, Familias says, “that should be the end of the matter.” Dkt. # 194 at 5. But 10 Federal Defendants’ acknowledgment is unlikely to be dispositive because Familias suggests that 11 it would not succeed in moving for contempt. Id. at 4–5. And as discussed above, it does not 12 explain how a violation of the first preliminary injunction may be brought under an APA claim. 13 Thus, asking whether DOL violates the first preliminary injunction likely leads nowhere. 14 The parties’ briefing, however, suggests that asking whether DOL violates its own 15 regulations (i.e., even in the absence of the first preliminary injunction), might lead somewhere. 16 Familias asserts that the first preliminary injunction only enjoined part of the One-Year Rule, 17 italicized below: 18 A prevailing wage issued by the OFLC Administrator will remain valid for 1 year after the wage is posted on the OFLC website or until replaced with an adjusted 19 prevailing wage, whichever comes first, except that if a prevailing wage that was guaranteed on the job order expires during the work contract, the employer must 20 continue to guarantee at least the expired prevailing wage rate. [21] 20 C.F.R. § 655.120 (c)(2) (emphasis added).11 Relying on a severability clause, Familias says 22 that the rest of the One-Year Rule remains in effect, such that it provides: “A prevailing wage [23] 24 11 OFLC refers to DOL’s Office of Foreign Labor Certification. 1 issued by the OFLC Administrator will remain valid until replaced with an adjusted prevailing 2 wage.” Dkt. # 176 at 16–17 (citing 20 C.F.R. § 655.190 ). Familias contends that replacing the 3 2020-survey wages with “no finding” results violates the One-Year Rule as severed because 4 Federal Defendants concede that a “no finding” is not a “prevailing wage.” This is consistent 5 with the definition of “prevailing wage” as 6 A wage rate established by the OFLC Administrator for a crop activity or agricultural activity and, if applicable, a distinct work task or tasks performed in 7 that activity and geographic area based on a survey conducted by a State that meets the requirements in § 655.120(c). [8] 20 C.F.R. § 655.103 (b) (emphasis added). And Federal Defendants do not dispute that many of [9] the “no finding” results in the 2022-survey wages are due to violations of the 25% Rule, which is [10] one of “the requirements in § 655.120(c),” specifically § 655.120(c)(1)(ix). Dkt. # 176 at 18 [11] (citing Dkt. # 76-3 at 130). [12] The Court, however, did not enjoin only part of the One-Year Rule. It enjoined all of it: [13] “DOL is ENJOINED from enforcing 20 C.F.R. §655.120 (c)(2), the One-Year rule, as to [14] prevailing wages for Washington State.” Dkt. # 40 at 21. But the fact that the One-Year Rule [15] clarifies whether a “no finding” result for a crop activity in a new set of prevailing wages [16] replaces a preexisting prevailing wage for that activity might still be significant. [17] Based on the One-Year Rule, it appears that if a new prevailing wage survey yielded a [18] “no finding” result for a crop activity, this result would have no effect until the preexisting [19] prevailing wage expired after one year. A “no finding” result would not replace a preexisting [20] prevailing wage before this one-year mark because it is not “an adjusted prevailing wage.” 20 21 C.F.R. § 655.120 (c)(2). And the notice of proposed rulemaking (NPRM) explains: [22] In addition to the standards governing the methodology in the survey, in 23 § 655.120(c)(2), the Department proposes that a prevailing wage rate would remain valid for 1 year after OFLC posts the wage rate or until replaced with an adjusted 24 prevailing wage, whichever comes first, except that if a prevailing wage that was 1 guaranteed in the employer’s Application for Temporary Employment Certification expires during the contract period, the employer must continue to guarantee a wage 2 that is at least equal to the expired prevailing wage rate. This proposal is consistent with OFLC’s current policy. [3] 84 Fed. Reg. 36168 , 36188 (July 26, 2019) (emphasis added). This appears to suggest that [4] DOL’s practice before the One-Year Rule was to replace a prevailing wage only when it expired [5] or was superseded by another prevailing wage. [6] What DOL’s practice was before the One-Year Rule, however, is an open question. As [7] the Court discussed in its order granting the first preliminary injunction, DOL justified the One8 Year Rule in the NPRM by explaining that the “1-year validity period for prevailing wage rates [9] [was] generally consistent with [DOL’s prior] practice.” Dkt. # 40 at 14 (quoting 84 Fed. Reg. at [10] 36188). But Michele Besso, the Managing Attorney of the Farm Worker Unit of the Northwest [11] Justice Project, declared that before 2023, DOL regularly kept prevailing wages for Washington [12] posted for more than one year. Id. at 14–15 (citing Dkt. # 25 at 2).12 As to whether a “no [13] finding” result may replace a preexisting prevailing wage, Baldwin declares: [14] When a SWA such as Washington’s ESD submits a prevailing wage survey to the 15 Department, if the Department is able to validate the survey’s findings under the Department’s regulations, the findings (or lack thereof) for each activity replace 16 published prevailing wage rates from a previous ESD survey. Where the most recent ESD survey has been unable to find a prevailing wage rate for a particular 17 activity under the Department’s regulations, that crop or activity will not have a prevailing wage rate. [18] Dkt. # 193 at 2–3, ¶ 5 (emphasis added). But neither Baldwin nor Federal Defendants provide [19] specific examples or cite persuasive authority to support this practice. Federal Defendants rely [20] on Garcia v. Stewart, 531 F. Supp. 3d 194 , 214 (D.D.C. 2021), for the proposition that it has no [21] obligation “to maintain or establish a prevailing wage rate” when “an SWA (such as ESD) is [23] 12 The Court granted in part Familias’s motion to supplement the record as to the Besso 24 Declaration. Dkt. # 127 at 18–20. 1 unable to find a prevailing wage rate for a particular activity based on a survey it conducts.” 2 Dkt. # 192 at 6. The cited part of this case, however, merely supports the conclusion that the 3 regulations do not “impose[] a nondiscretionary duty on employers to offer and to pay—and thus 4 on DOL to ensure that employers will offer and pay—an amount equal to at least the highest of 5 the four wage rates, even if no one has calculated or established one or more of those rates.” 6 Garcia, 531 F. Supp. 3d at 214 (emphasis added). It does not address whether the regulations 7 impose a duty on DOL to ensure that employers will offer and pay a preexisting prevailing wage 8 for an activity even if a subsequent prevailing wage survey produces “no finding” for that 9 activity. 10 The regulations might impose such a duty. Federal Defendants say that in replacing the 11 2020-survey wages with “no finding” results, DOL is “simply following” 20 C.F.R. 12 §§ 655.120(a)(1)(ii), (c). But § 655.120(a)(1)(ii) provides: 13 (1) Except for occupations covered by §§ 655.200 through 655.235, to comply with its obligation under § 655.122(l), an employer must offer, advertise in its 14 recruitment, and pay a wage that is at least the highest of: 15 (i) The AEWR; 16 (ii) A prevailing wage rate, whether expressed as a piece rate or other unit of pay, if the OFLC Administrator has approved a prevailing wage survey 17 for the applicable crop activity or agricultural activity and, if applicable, a distinct work task or tasks performed in that activity, meeting the 18 requirements of paragraph (c) of this section; 19 (emphasis added). And § 655.120(c)(1) provides, “The OFLC Administrator will issue a 20 prevailing wage for a crop activity or agricultural activity and, if applicable, a distinct work task 21 or tasks performed in that activity if all of the following requirements are met” (emphasis added). 22 Thus, it is possible that once the OFLC Administrator approves a prevailing wage, an employer 23 “must” pay it until the OFLC Administrator approves another prevailing wage. [24] 1 Familias therefore shows some likelihood of success on the merits of its claim that 2 DOL’s replacement of the 2020-survey wages with “no finding” results is contrary to law. 3 2. DOL’s application of the 25% Rule in publishing “no finding” results as part of the 2022-survey prevailing wages [4] The parties have fully briefed Familias’s claim that the 25% Rule is arbitrary and [5] capricious and contrary to law in their cross-motions for summary judgment and they refer to [6] such briefing in their contentions as to whether the Court should issue a third preliminary [7] injunction. Dkt. ## 176 at 19; 192 at 7. Thus, the Court suggested that the parties could propose [8] consolidating part of Familias’s motion for a third preliminary injunction with consideration on [9] the merits. Dkt. # 196 at 17 n.12. The Court also directed the parties to either amend or [10] supplement their cross-motions for summary judgment in light of DOL’s publishing the 202211 survey wages or tell the Court that they will not do so. Id. at 17. Familias filed a notice that it [12] does not intend to amend or supplement its motion for partial summary judgment and that it does [13] not oppose consolidation of part of its motion for a third preliminary injunction with [14] consideration on the merits. Dkt. # 198 at 1–2. Federal Defendants take no position on the issue [15] of consolidation and indicate that they “will file a supplemental memorandum in support of its [16] cross-motion for summary judgment to address newly alleged claims in Plaintiff’s third amended [17] complaint.” Dkt. # 200 at 4. Considering the lack of agreement on the issue, the Court will not [18] consolidate part of Familias’s motion for a third preliminary injunction as to the 25% Rule with [19] consideration on the merits. The Court considers the parties’ summary judgment briefing only [20] for purposes of ruling on the present motion. [21] The Court begins with an overview of the 25% Rule before turning to Familias’s claim as [22] raised in the present motion. The 25% Rule is among many requirements that must be met [23] before the OFLC Administrator will issue a prevailing wage: [24] 1 (1) The OFLC Administrator will issue a prevailing wage for a crop activity or agricultural activity and, if applicable, a distinct work task or tasks performed in 2 that activity if all of the following requirements are met: 3 . . . 4 (ix) Where the estimated universe of employers is at least 4, the wages paid by a single employer represent no more than 25 percent of the sampled 5 wages in the unit of pay used to compensate the largest number of U.S. workers whose wages are reported in the survey. This paragraph (c)(1)(ix) 6 does not apply where the estimated universe of employers is less than four. [7] 20 C.F.R. § 655.120 (c)(1)(ix) (emphasis added). The purpose of the rule, as stated in the NPRM, 8 is to ensure that the prevailing wage “is not unduly impacted by the wages of a single dominant 9 employer.” 84 Fed. Reg. at 36187. 10 Federal Defendants say that the plain text of the rule is clear: if an employer represents 11 more than 25% of the sampled wages based on the appropriate metric, the OFLC Administrator 12 cannot issue a prevailing wage. According to Familias, DOL created the following example: [24] 1 SAMPLE PREVAILING WAGE SURVEYS - APPLES, PICKING lu 0h □□□ rita lial □□□ perms seat | eld iia [9] 10 Calculation of Largest Unit of Pay 53 Per Bin 11 ere were only 40 Hourly workers 53>40 [12] Calculation of Dominant Employer 13 Per bin is largest unit of pay es--30 percent is above 25 percent threshold 14 53 workers reported in largest unit of pay 16 is the highest number of workers per employer 15 out of this new subset of employers. 16 16 /53 =30 percent 17 Dkt. # 165 at 17 (citing Dkt. # 76-2 at 212 (AR 686-1)). 18 As shown above, the first step is to determine the appropriate metric: “the unit of pay 19 used to compensate the largest number of U.S. workers whose wages are reported in the survey.” [0] 20 C.F.R. § 655.120 (c)(1)Ux). Because 53 employees were paid by the bin as opposed to 40 1 employees who were paid by the hour, the appropriate metric is pay by the bin. The second step 9 is to determine whether a single employer employs more than 25% of the employees based on 3 the appropriate metric. Because one employer paying by the bin reports 16 employees and 16 is [24] ORDER DENYING PLAINTIFF’S MOTION FOR 1 about 30% of the 53 employees who are paid by the bin in the sample, this survey violates the 2 25% Rule. 3 The parties appear to agree that the OFLC Administrator is not required to issue a 4 prevailing wage based on a survey in which an employer represents more than 25% of the 5 sampled wages based on the appropriate metric. They part ways, however, as to whether the 6 OFLC Administrator nonetheless has a duty to make a prevailing wage finding. DOL says that 7 the OFLC Administrator has no such duty; the Administrator will issue a “no finding” result. 8 Dkt. # 76-2 at 214 (AR 687); see also Dkt. # 76-3 at 170–71 (AR 1208–09). A flowchart 9 provided by the National Prevailing Wage Center provides, “No Finding determinations may be 10 the result of a prevailing wage survey not meeting one or more of the requirements under 20 11 CFR 655.120(c).” Dkt. # 76-2 at 214. Familias contends that this is contrary to the purpose of 12 the regulation which, in its view, is to increase the number of prevailing wages. See Dkt. # 176 13 at 19; see also Dkt. # 165 at 19. Familias therefore asserts that the rule should be interpreted to 14 “cap the large employer’s data at 25% of reported workers or remove the offending data and 15 calculate a prevailing wage from the remaining data.” Dkt. # 176 at 19. For example, although 16 the “dominant” employer in the example above reports 16 employees paid by the bin, only 13 of 17 those employees (about 24.5% of the employees based on the appropriate metric) or none of 18 them would be considered in calculating a prevailing wage. 19 In sum, the parties appear to agree as to when a survey violates the 25% Rule; they 20 disagree as to whether the OFLC Administrator has a duty to issue a prevailing wage even when 21 a survey violates the 25% Rule. With this central disagreement in mind, the Court turns to 22 Familias’s claim in its present motion that the 25% Rule is arbitrary and capricious and contrary 23 to law as applied in publishing the 2022-survey wages. Dkt. # 176 at 19. This appears to be [24] 1 distinct from Familias’s facial challenge to the 25% Rule as raised in its pending partial [2] summary judgment motion.13 3 For agency action to be set aside as arbitrary and capricious, courts consider whether the 4 agency 5 has relied on factors which Congress has not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its 6 decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency 7 expertise. 8 Advanced Integrative Med. Sci. Inst., PLLC v. United States Drug Enf’t Admin., 128 F.4th 1133 , 9 1143 (9th Cir. 2025) (quoting Motor Vehicle Mfrs. Ass’n of the U.S. v. State Farm Mut. Auto. 10 Ins. Co., 463 U.S. 29, 43 (1983)). Courts may also set aside agency action that is contrary to 11 law. See Montana Wildlife Fed’n v. Haaland, 127 F.4th 1 , 42 (9th Cir. 2025) (quoting Norton v. 12 S. Utah Wilderness All., 542 U.S. 55, 69 (2004)). The inquiry is whether the agency’s decision13 making process as to a specific “agency action” is arbitrary and capricious or contrary to law. 5 14 U.S.C. § 706 (2)(A). 15 Thus, what Familias states is its as-applied challenge appears to concern DOL’s decision 16 to publish “no finding” results in the 2022-survey wages. The basis for Familias’s claim is not 17 entirely clear because although it specifies that its claim in the present motion is an as-applied as 18 opposed to a facial challenge to the 25% Rule, it does not explain whether this changes the [19] 20 13 Federal Defendants raise the issue of administrative waiver as to Familias’s facial challenge to the 25% Rule in their briefing on the cross-motions for summary judgment. Dkt. # 185 at 12–15 & n.5. 21 After DOL published the 2022-survey wages during this briefing, Familias amended its complaint to add an as-applied challenge to the 25% Rule, which is raised for the first time in the present motion for a third 22 preliminary injunction. Dkt. # 176 at 19. Federal Defendants do not respond to Familias’s assertion that waiver is inapplicable to such a claim. Id. at 23 (citing Koretoff v. Vilsack, 707 F.3d 394, 399 (D.C. Cir. 2013)); Dkt. # 194 at 7 n.2. And Familias does not raise its facial challenge in its present motion. Dkt. [23] # 176 at 19 (“Plaintiff’s motion for a TRO and preliminary injunction is an ‘as applied’ challenge to DOL’s interpretation of the 25% rule.”); see also id. at 23 (“[B]ecause this is a challenge to DOL’s 24 application of the 25% Rule to the 2022 survey findings, waiver is not an issue.”). 1 applicable analysis. Instead, Familias generally repeats contentions made in its partial summary 2 judgment motion, which concern a facial challenge to the rule. To the extent that the Court can 3 discern Familias’s as-applied challenge as distinct from a facial one, it concludes that its three 4 contentions made in support of it are unpersuasive. 5 First, Familias contends that DOL should have interpreted the 25% Rule to mean that 6 when a survey violates it, the OFLC Administrator must cap a “dominant” employer’s data at 7 25% or remove that employer’s data altogether and publish a prevailing wage based on the 8 remaining data rather than a “no finding” result. Familias asserts that when the 25% Rule is 9 violated, the OFLC Administrator nonetheless has a duty to publish a prevailing wage because 10 DOL recognized that standards contributing to a “no finding” result are “both a waste of 11 government resources and fail[s] to meet the goal of producing reliable and accurate prevailing 12 wage rates.” Dkt. # 176 at 21 (quoting 84 Fed. Reg. at 36187). Familias also appears to refer to [13] 8 U.S.C. § 1188 (a)(1)(B), which provides that the Secretary of Labor may certify employment of 14 an H-2A worker if it “will not adversely affect the wages and working conditions of workers in 15 the United States similarly employed.” 16 Without more, however, the Court cannot conclude that DOL’s decision to publish “no 17 finding” results in its 2022-survey wages is likely arbitrary and capricious or contrary to law. 18 Because Familias does not explain how DOL approved the 2022-survey wages, the Court cannot 19 assess whether its decision-making process was arbitrary and capricious. The Court similarly 20 denied in part Familias’s motion for a first preliminary injunction as to the 25% Rule because 21 Familias did not provide “sufficient information about the agency’s decision-making process.” 22 Dkt. # 40 at 16–17. 23 Familias’s claim that the publication of “no finding” results in the 2022-survey wages is 24 contrary to law is also underdeveloped. The plain text of the 25% Rule does not support 1 Familias’s interpretation that when a survey violates the rule, the OFLC Administrator must 2 salvage the survey by limiting the data of a “dominant” employer and publish a prevailing wage. 3 And Familias does not explain how DOL’s recognition that standards contributing to “no 4 finding” results are contrary to “the goal of producing reliable and accurate prevailing wage 5 rates” supports the conclusion that DOL has a general duty to publish prevailing wage rates even 6 when the regulatory scheme would produce no finding. 84 Fed. Reg. at 36187 (emphasis [7] added).14 Nor does it explain with specificity or supporting authority how 8 U.S.C. 8 § 1188(a)(1)(B)’s broad provision for ensuring that H-2A workers do not “adversely affect the 9 wages and working conditions of workers in the United States” imposes a duty on DOL to [10] publish prevailing wages by salvaging surveys that fail to satisfy its regulations.15 11 Second, Familias contends that the DOL’s application of the 25% Rule is arbitrary 12 because although the purpose of the rule is to prevent “dominant” employers from unduly 13 influencing prevailing wages, the 2022 cherry and apple surveys show that the prevailing wage is 14 “essentially the same” whether the “dominant” employer’s data is considered or not. Dkt. # 176 15 at 21–22 (citing Dkt. # 182 at 3–5). Even if so, it is unclear how DOL’s application of the rule 16 can be arbitrary if the rule does not provide for an exception in such circumstances. See 17 Advanced Integrative Med. Sci. Inst., 128 F.4th at 1148 (an agency’s failure to discuss a standard [18] 19 14 Familias also cites another part of the NPRM that similarly says, “By modernizing the prevailing wage survey standards, the Department hopes to focus States on producing surveys in the 20 circumstances in which the surveys can be most useful for protecting the wages of U.S. workers, and hopes to encourage a greater number of reliable prevailing wage survey results.” Dkt. # 176 at 5 (quoting 21 84 Fed. Reg. at 36185) (emphasis added). 15 Familias refers to part of its response to Federal Defendants’ cross motion for summary 22 judgment, in which it responds to their contention that DOL has a duty to balance the competing goals of protecting domestic farmworkers and ensuring that growers have a sufficient source of labor. Dkt. # 194 at 9 (citing Dkt. # 187 at 3–5). It asserts that DOL’s “sole duty” under the regulatory scheme is “to [23] determine what standards, including what wage levels, will protect U.S. workers from the adverse effects of foreign competition.” Dkt. # 187 at 3–5. But this general assertion does not specifically explain how 24 DOL has a duty to salvage surveys to issue prevailing wages. 1 that it never adopted is not arbitrary and capricious). And to the extent that Familias’s as-applied 2 challenge is effectively a facial challenge to a rule, the parties do not discuss whether 3 administrative waiver might apply. See Cnty. of Amador v. United States Dep’t of the Interior, [4] 872 F.3d 1012 , 1031 n.18 (9th Cir. 2017) (“If [the plaintiff’s] as-applied challenge fails, then 5 [its] facial challenge necessarily fails as well because there is at least one set of circumstances 6 where application of [the challenged statute] [is lawful].”) (citation omitted, alteration added); 7 see supra n.13 (discussing administrative waiver). 8 Finally, Familias suggests that application of the 25% Rule is contrary to law because 20 9 C.F.R. § 655.120 (c)(1)(iv)16 requires that a survey be based on a sufficiently large sample. 10 Familias says that this requirement ensures that such surveys will necessarily constitute a 11 “sufficiently representative sample” of the population, supposedly quoting DOL’s final rule. 12 Dkt. # 176 at 22 (citing 87 Fed. Reg. at 61695). Thus, Familias reasons that the 25% Rule 13 undermines the extent to which a survey is reliable. But the cited page of the final rule neither 14 appears to contain this quote nor supports the proposition that § 655.120(c)(1)(iv) alone ensures 15 a sufficiently representative sample of the population. The final rule says that “the minimum 16 standards in § 655.120(c)” as a whole “are aimed at ensuring surveys that are sufficiently 17 representative and do not rely on selecting sampling or other techniques that result in biased 18 prevailing wages.” 87 Fed. Reg. at 61695. 19 Thus, Familias does not show likelihood of success on the merits of its as-applied 20 challenge to the 25% Rule. [22] 16 This regulation provides, “The surveyor either made a reasonable, good faith attempt to contact all employers employing workers in the crop activity or agricultural activity and distinct work task(s), if [23] applicable, and geographic area surveyed or contacted a randomized sample of such employers, except where the estimated universe of employers is less than five. Where the estimated universe of employers is 24 less than five, the surveyor contacted all employers in the estimated universe.” 1 3. DOL’s approval of the methods ESD used to determine the 2022-survey prevailing wages [2] Familias contends that DOL’s approvals of three methods that ESD used to calculate [3] prevailing rates based on its 2022 survey findings are arbitrary and capricious and contrary to [4] law: (1) fracturing similar wages into different categories (wage fracturing); (2) allowing [5] “tainted” (i.e., unrepresentative) survey data; and (3) estimating populations. Familias asks the [6] Court to enjoin DOL from calculating prevailing wages based on these methods. Dkt. # 176 at [7] 36. As discussed above, these claims were previously dismissed on partial summary judgment [8] insofar as they allege that DOL approved ESD’s 2022 survey method because Familias failed to [9] identify a final agency action, which is required for APA review. 5 U.S.C. § 704 ; Dkt. # 127 at [10] 7–10, 23. At the time, DOL had not approved the 2022-survey wages and Familias did not [11] identify any other final agency action as to these claims. But after DOL published the 202212 survey wages, the Court granted Familias leave to file a supplemental and third amended [13] complaint to renew these claims based on its assertion that publication of the 2022-survey wages [14] constitutes final agency action. Dkt. # 196 at 10–11. That the Court allowed Familias to revive [15] these claims, however, does not mean that they necessarily satisfy the final agency action [16] requirement. [17] To the contrary, Familias does not show likelihood of success in showing that publication [18] of the 2022-survey wages is final agency action as to these claims. Familias assumes that DOL’s [19] approval of the 2022-survey wages—which Federal Defendants do not dispute is a final agency [20] action—allows for APA review of every method used to produce those wages. But it cites no [21] authority suggesting that a final agency action of approving a set of findings can be construed as [22] a final agency action of approving every method used to produce those findings. Nor does it [24] 1 identify other allegedly final actions taken by DOL that might be construed as approval of ESD’s 2 methods. 3 Moreover, the extent to which DOL has authority over ESD’s methods is unclear. 4 Federal Defendants assert that 5 if Plaintiff prevailed in challenging the Department’s issuance of the 2022-survey wages based on an argument that ESD’s survey was inadequate, the result would 6 not be that the Department would be required to impose different standards on ESD, because the regulation does not allow that. Instead, the result would be that the 7 Department would issue no prevailing wage finding. 8 Dkt. # 192 at 16 (emphasis added). They also assert that ESD has discretion to choose 9 methodologies “to try to make sense of [] widely varying methods of compensation to produce 10 prevailing wage findings,” and that “the Department’s regulations do not permit it to publish a 11 prevailing wage rate if ESD is unable to find a prevailing wage rate.” Id. at 11 . But they cite no [12] regulation(s) to support these assertions.17 Similarly, Familias suggests that 8 U.S.C. 13 § 1188(a)(1)(B) imposes a duty on DOL to “insist that the state agencies (which are paid by 14 DOL) conduct surveys in conformance with the requirements of the law.” Dkt. # 194 at 12. But 15 Familias does not specify what these “requirements” are. It merely cites a previous filing in 16 which it provided an overview of the guidance DOL gives to SWAs as to how to perform their 17 roles in determining prevailing wages. Id. (citing Dkt. # 54 at 4–6). 18 Because Familias does not sufficiently show that there is final agency action as to its 19 claims that DOL’s approvals of ESD’s methods are arbitrary and capricious and contrary to law, 20 the Court cannot review them. See San Francisco Herring Ass’n v. Dep’t of the Interior, 946 21 F.3d 564, 571 (9th Cir. 2019) (“In this circuit, the final agency action requirement has been 22 treated as jurisdictional.”). [23] 17 They cite Baldwin’s Fifth Declaration, but the paragraph to which they cite does not mention a 24 specific regulation. Dkt. # 192 at 11 (citing Dkt. # 193 at 2–3, ¶ 5). 1 4. DOL’s application of ESD’s survey methods in publishing “no finding” results as part of the 2022-survey prevailing wages [2] The Court can, however, consider ESD’s methods in assessing Familias’s claim that [3] DOL’s publication of “no finding” results in the 2022-survey wages (which again, Federal [4] Defendants do not dispute is a final agency action) is arbitrary and capricious and contrary to [5] law. Because Familias does not clearly differentiate between its challenge to DOL’s approval of [6] ESD’s methods and its challenge to DOL’s publication of “no finding” results in the 2022-survey [7] wages based on those methods, the agency action at issue is not always clear. See e.g., Dkt. [8] # 176 at 28 (“This Court should find that Familias is likely to prevail on its claim that wage [9] fracturing is arbitrary and contrary to law and enjoin enforcement of the 2022-Survey ‘no [10] findings’ for that reason.”). Based on the briefing before it, the Court concludes that Familias is [11] unlikely to succeed on its claim that DOL’s publication of “no finding” results in the 202212 survey wages is arbitrary and capricious and contrary to law because they are based on ESD’s [13] survey methods. [14] a. Wage fracturing [15] Familias describes ESD’s “wage fracturing” practice as treating (i) piece rates with [16] hourly guarantees; (ii) piece rates with bonuses; and (iii) straight piece rates (piece rates with no [17] hourly guarantees or bonuses) as different units of pay. Dkt. # 197 at 21–22, ¶ 116. Familias [18] alleges that this practice is flawed because it undercounts piece-rates and inflates the number of [19] hourly rates: [20] As a result of DOL’s approval of the policy of subdividing piece rates, it is possible 21 that even though the majority of the workers on the survey responses are paid a piece rate with or without a guarantee or bonus, an hourly rate (paid to a minority 22 of the workers) will be deemed to be the prevailing rate. For example, if 66% of all workers are paid a piece rate, with 33% of the reported workers paid by the piece 23 and another 33% paid at a piece rate with an hourly guarantee, and the remaining 34% of workers are paid by the hour, DOL’s policy would deem the hourly rate the 24 prevailing rate. [1] Id. at 22, ¶ 118. [2] Familias also alleges that wage fracturing makes it more likely that the wages paid by a [3] single employer will violate the 25% Rule: [4] For example, in the 2022 survey results, Fuji, Red Delicious, and Granny Smith 5 apple harvests, the majority method of pay was pay by the bin of “not sure” size. Only one employer reported paying by the bin of “not sure” size, and thus those 6 results were guaranteed to violate the 25% rule, as 100% of the workers in the majority method of pay were represented by the same employer response. As a 7 result, every one of the dozens of other responses from Fuji harvest employers was disregarded, and workers in Fuji harvest were left without a piece-rate prevailing 8 wage, causing adverse effects on their wages and working conditions. 9 Id. at 24–25, ¶¶ 133–34. 10 But Familias does not explain how DOL considered (or failed to consider) the effects of 11 wage fracturing. And Federal Defendants suggest that DOL might have considered ESD’s 12 discretion in conducting its prevailing wage surveys, the scope of which is unclear. See supra 13 Section III.B.3. Without more information about the process by which DOL published the 202214 survey wages, the Court cannot conclude that this action is likely arbitrary and capricious. 15 As for its contrary to law claim, Familias appears to refer to 8 U.S.C. § 1188 (a)(1)(B), 16 which, again, provides that the Secretary of Labor may certify employment of an H-2A worker if 17 it “will not adversely affect the wages and working conditions of workers in the United States 18 similarly employed.” Familias appears to suggest that this statutory provision can be construed 19 to mean that it is unlawful for DOL to publish “no finding” results based on surveys findings that 20 could have been calculated in a reasonable manner to produce more prevailing piece rate wages. 21 See Dkt. # 194 at 12. But Familias cites no authority to support this interpretation. Nor does it 22 explain how this interpretation is workable. For example, it is unclear how courts can determine 23 whether an alternative method of calculating survey findings is “reasonable,” if that would be the 24 relevant standard. In discussing the 25% Rule, Federal Defendants offer a simpler interpretation: 1 “the Department’s legal duty to protect the wages of workers in the United States is satisfied by 2 the AEWR.” Dkt. # 192 at 10. Familias does not respond to this interpretation. Thus, the Court 3 cannot conclude that Familias is likely to succeed on its wage-fracturing claim. 4 b. Tainted survey data 5 Familias asserts that survey data can be “tainted” when H-2A employers who unlawfully 6 pay the AEWR instead of an existing prevailing piece-rate wage respond to an SWA’s survey. 7 Dkt. # 176 at 28. By inflating the number of AEWR responses, these H-2A employers can skew 8 the survey data such that it is more likely that the next prevailing wage based on the survey will 9 be an hourly wage. See id. at 28–29. Familias contends that because DOL failed to correct for 10 such wage taint, its publication of “no finding” results as part of the 2022-survey wages is 11 arbitrary and capricious and contrary to law. To support its contention, Familias relies on an 12 earlier case in which the Ninth Circuit remanded for a district court to remedy such survey bias. 13 In Torres Hernandez v. U.S. Dep’t of Lab., Familias (with another plaintiff) claimed that 14 before DOL could certify an employer offering the AEWR, DOL needed to determine whether 15 the AEWR was higher than an applicable prevailing piece-rate wage. 2023 WL 5662560 , at *1 16 (E.D. Wash. Aug. 31, 2023), rev’d and remanded sub nom. Torres Hernandez v. Su, 2024 WL 17 2559562, at *1 (9th Cir. May 24, 2024). The district court denied the plaintiffs’ motion for a 18 preliminary injunction because “[n]othing in 20 C.F.R. § 655.120 nor § 122(1) requires DOL to 19 check the AEWR against the prevailing wage rate before certification.” Id. The plaintiffs 20 appealed. 21 The Ninth Circuit reversed and remanded for entry of a preliminary injunction. Torres 22 Hernandez, 2024 WL 2559562 , at *1. Although DOL amended 20 C.F.R. § 655.120 (a) while 23 the appeal was pending, the Ninth Circuit considered the previous version of that subsection, 24 which provided: 1 (a) Employer obligation. Except for occupations covered by §§ 655.200 through 655.235, to comply with its obligation under § 655.122(l), an employer must offer, 2 advertise in its recruitment, and pay a wage that is at least the highest of: 3 (1) The AEWR; (2) A prevailing wage rate [subject to certain criteria].18 [4] See also Dkt. # 104-10 at 64 (comparing the previous and amended versions of § 655.120(a)). [5] The Ninth Circuit held that when the prevailing wage is a piece-rate, the previous version [6] of § 655.120(a) required an H-2A employer to offer it. Torres Hernandez, 2024 WL 2559562 , at [7] *1. Because the regulations require employers to supplement the wages of piece-rate workers if [8] their earnings fall below the amount that they would have earned under an hourly wage, a [9] prevailing piece-rate wage “is always ‘at least the highest of’ the listed wages.” Id. The Ninth [10] Circuit observed that its interpretation of the previous version of § 655.120(a) is consistent with [11] the amended version in the Final Rule, id. at *1 n.2, which added subsection (a)(2): [12] (a) Employer obligation. [13] (1) Except for occupations covered by §§ 655.200 through 655.235, to [14] comply with its obligation under § 655.122(l), an employer must offer, advertise in its recruitment, and pay a wage that is at least the highest of: [15] (i) The AEWR; [16] (ii) A prevailing wage rate [subject to certain criteria]; [17] . . . [18] (2) Where the wage rates set forth in paragraph (a)(1) of this section are [19] expressed in different units of pay (including piece rates or other pay structures), the employer must list the highest applicable wage rate for each [20] unit of pay in its job order and must offer and advertise all of these wage rates in its recruitment. The employer’s obligation to pay the highest of [21] these wage rates is set forth at § 655.122(l)(2). [23] 24 18 As discussed in footnote 1, 20 C.F.R. § 655.120 (a) lists additional wages not at issue here. 1 The Ninth Circuit concluded that the amendment to § 655.120(a) did not moot the case 2 because the plaintiffs could still seek “vacatur of improperly approved AEWR-only job orders 3 from the 2023 harvest season and exclusion of wages paid under those orders from future 4 prevailing wage surveys.” Torres Hernandez, 2024 WL 2559562 , at *2. The Ninth Circuit 5 directed entry of an injunction requiring DOL to exclude from future prevailing wage surveys 6 certain reported wages. Id. On remand, the district court issued a permanent injunction, which 7 provides, 8 ESD shall exclude from future prevailing wage survey results any reported wages that (1) exactly match the AEWR; (2) were paid by an employer that had received 9 an AEWR-only job order for the 2023 harvest season; and (3) were paid during the 2023 harvest season for work in an agricultural activity with a piece-rate prevailing 10 wage during that season. 11 Dkt. # 113-2 at 7. This injunction does not bear on the 2022-survey wages and enjoins only 12 ESD, which has been dismissed from the case before this Court. Dkt. # 117. 13 Torres Hernandez supports the proposition that when an H-2A employer unlawfully pays 14 the AEWR instead of a prevailing piece-rate wage, DOL should not approve a prevailing wage 15 based on surveys that include those wages. Federal Defendants nonetheless contend that Torres 16 Hernandez is inapplicable because Familias does not sufficiently show that the 2022-survey 17 wages were based on surveys that included responses from H-2A employers who unlawfully [18] paid the AEWR instead of a prevailing piece-rate wage.19 They also suggest that it is not 19 arbitrary and capricious or contrary to law for DOL to approve the 2022-survey wages without 20 taking precautions to search for such wage taint. [22] 19 What Familias means by H-2A employers who were “unlawfully allowed to pay AEWR-only wages where prevailing piece rates existed” is not entirely clear. Dkt. # 176 at 28 (emphasis added). [23] Because Familias does not directly challenge DOL’s approval of AEWR-only job orders that might have affected the 2022-survey wages, it appears to refer to H-2A employers who, absent DOL’s approval of an 24 AEWR-only job order, unlawfully paid the AEWR instead of a prevailing piece-rate wage. 1 Familias does not show that the 2022-survey wages were likely based on surveys that 2 included responses from H-2A employers who unlawfully paid the AEWR instead of a 3 prevailing piece-rate wage. Familias asserts that there were prevailing piece-rate wages for 4 apples in 2022, and that the survey data for the Gala apple harvest that year includes responses 5 from employers reporting that they paid 684 employees wages of $17.41 an hour, the AEWR 6 that year. Dkt. # 176 at 28–29 (citing Dkt. # 76-3 at 309–10). Federal Defendants counter that 7 these responses could be from non-H-2A employers, who are presumably not required to offer a 8 prevailing piece-rate wage. Dkt. # 192 at 12. Familias responds that “it strains credulity for 9 DOL to assert that non-H-2A employers would just happen to offer and pay the exact number of 10 dollars and cents as the AEWR.” Dkt. # 194 at 13–14. But without any evidence, the Court 11 cannot determine how unlikely it is that a non-H-2A employer would decide to pay the AEWR. 12 Whether it is likely arbitrary and capricious or contrary to law for DOL to publish “no 13 finding” results in the 2022-survey wages without taking precautions to search for such wage 14 taint is a closer question. Familias contends that DOL’s approval of these wages is arbitrary and 15 capricious and contrary to law because it should have asked ESD for information in its 16 possession that would reveal whether H-2A employers unlawfully offered the AEWR instead of 17 a prevailing piece-rate wage. Dkt. # 194 at 14 (citing Dkt. # 71-1 at 4). It does not, however, 18 adequately respond to Federal Defendants’ assertion that 20 C.F.R. § 655.120 (c), which sets 19 forth survey validation requirements, does not require DOL to make such an inquiry. Dkt. # 192 20 at 13. Familias reiterates that DOL has an “overarching duty” under 8 U.S.C. § 1188 (a)(1)(B) to 21 ensure that the employment of a foreign worker “will not adversely affect the wages and working 22 conditions of workers in the United States similarly employed.” Dkt. # 194 at 12–13. But 23 Familias cites no authority other than Torres Hernandez to support its claim that this provision 24 imposes a duty on DOL to thoroughly check for wage taint such that its failure to do so would be 1 arbitrary and capricious or contrary to law. Nor does it explain how thoroughly DOL must check 2 for wage taint to fulfill such a duty. 3 To be sure, requiring DOL to check for wage taint appears consistent with the goals 4 indicated in 8 U.S.C. § 1188 (a)(1)(B) and DOL’s purpose as stated in the NPRM to “[e]stablish 5 reliable and accurate prevailing wage rates for employers and workers.” 84 Fed. Reg. at 36179. 6 Mere consistency, however, is not enough. To determine what DOL must consider or do to 7 avoid “adverse[] [e]ffects” on the wages and working conditions of domestic workers or to 8 establish “reliable and accurate prevailing wage rates,” the Court must rely on the regulatory 9 scheme and interpretive guides, not Familias’s opinion as to what DOL should have done. Thus, 10 the Court cannot conclude that Familias is likely to succeed on this claim. 11 c. Population-estimate method 12 Familias contends that DOL’s publication of “no finding” results in the 2022-survey 13 wages is arbitrary and capricious and contrary to law because ESD’s surveys violate 20 C.F.R. 14 § 655.120(c)(1)(v), which provides, 15 (1) The OFLC Administrator will issue a prevailing wage for a crop activity or agricultural activity and, if applicable, a distinct work task or tasks performed in 16 that activity if all of the following requirements are met: 17 . . . 18 (v) The survey reports the average wage of U.S. workers in the crop activity or agricultural activity and distinct work task(s), if applicable, and 19 geographic area using the unit of pay used to compensate the largest number of U.S. workers whose wages are reported in the survey; [1] (emphasis added).20 The requirement that the survey must report a wage based on workers 2 “whose wages are reported in the survey” also appears in other subsections, like the 25% Rule. 3 See e.g., 20 C.F.R. § 655.120 (c)(1)(ix). 4 The parties do not dispute that ESD uses a “population-estimate method” to extrapolate 5 the number of workers based on the number of reported wages. Familias asserts that the 6 estimated number of workers is not always directly proportional to the number of reported 7 workers. For example, Familias says that in one instance, 8 ESD took the single employer whose survey response reported 120 employees paid by the “not sure” sized bin and converted those 120 workers into 3,566.16 9 “estimated” workers, surpassing the 386 reported employees whose conversion to “estimated” workers only amounted to 3,159.47 workers, worthy only of second 10 place. 11 Dkt. # 176 at 31–32 (citing Dkt. # 76-3 at 362). Thus, ESD’s use of the population estimate 12 method can alter the prevailing wage. 13 Even if ESD’s surveys violate § 655.120(c)(1)(v), it is unclear how this renders DOL’s 14 publication of “no finding” results in the 2022-survey wages arbitrary and capricious or contrary 15 to law. It appears that DOL followed the regulations: because ESD’s surveys do not satisfy all 16 the requirements of § 655.120(c), the OFLC Administrator issued a “no finding” instead of a 17 prevailing wage. Familias reiterates its contention that DOL has a broad duty to protect 18 farmworkers’ wages, and thereby suggests that DOL should have instructed ESD to conduct its 19 survey in a manner that would yield a prevailing wage. Dkt. # 194 at 16. But as discussed above 20 as to Familias’s contentions regarding the 25% Rule, wage-fracturing, and tainted survey data, a 21 bare reference to 8 U.S.C. § 1188 (a)(1)(B) is not enough for the Court to determine that DOL has [22] 23 20 Federal Defendants assert that Familias’s population-estimate method claim is barred by the law of the case. Dkt. # 192 at 14–15. The Court rejected this assertion in granting Familias leave to file a 24 supplemental and third amended complaint. Dkt. # 196 at 10–11. 1 a duty to take particular steps to set new prevailing wages. Familias cites NAACP, W. Region v. 2 Brennan, 1974 WL 229 , at *1–3 (D.D.C. Aug. 13, 1974), to show that courts have previously 3 ordered DOL to instruct state agencies to take specific actions. That this could be a proper 4 remedy, however, does not aid Familias in showing a likelihood of success on the merits. 5 * * * 6 Because Familias shows only some likelihood of success on the merits of its claim that 7 “no finding” results in the 2022-survey wages cannot replace the 2020-survey wages, it does not 8 offset its weak showing of irreparable harm under the sliding scale approach. Thus, the Court [9] denies its motion for a third preliminary injunction.21 10 C. Balance of Equities and Public Interest The balance of the equities and public interest factors do not change the outcome because [11] the parties’ contentions as to these factors largely overlap with their assertions as to the [12] irreparable harm and likelihood of success on the merits factors. In granting the first preliminary [13] injunction, the Court held that the balance of the equities and the public interest tipped sharply in [14] favor of a preliminary injunction because “[d]epression of local farmworker wages causes the [15] exact harm that Congress sought to prevent in the H-2A program,” and “the public interest is [16] served by stability in farmworker wages.” Dkt. # 40 at 20–21 (quoting Torres-Hernandez v. 17 Stewart, 2021 WL 6274440, at *11 (E.D. Wash. Mar. 1, 2021)). The Court also considered the [18] fact that there is “a public interest in the lawful administration of government agencies.” Id. at [19] 21 (citing League of Women Voters of United States v. Newby, 838 F.3d 1, 12 (D.C. Cir. 2016)). [20] Familias contends that “[t]he situation here is indistinguishable” as to these factors. Dkt. [21] # 176 at 35. But as discussed above, Familias does not adequately explain how the extent to [23] 21 Because the Court denies Familias’s motion, it does not reach Federal Defendants’ contentions 24 as to what the proper relief would be had Familias prevailed on its motion. 1 which the reduction in farmworkers’ wages is self-inflicted changes the analysis. If anything, the 2 self-inflicted nature of the harm undermines the stability in farmworker wages. And because 3 Familias shows only some likelihood of success on the merits as to one claim, it does not make a 4 strong showing that DOL undermines the public interest by acting unlawfully. 5 IV CONCLUSION 6 For these reasons, the Court DENIES Familias’s motion for a third preliminary injunction 7 without prejudice. 8 In light of this ruling, the parties may, if they wish, revise their proposed deadlines in 9 their joint status report, Dkt. # 200, by filing another joint status report by August 27, 2025. 10 Dated this 19th day of August, 2025. [11] 12 a 13 John H. Chun United States District Judge